Mr Charlie Forrest v Amazon Web Services
Charlie Forrest v Amazon Web Services [2025] EAT 81
Facts
Mr. Charlie Forrest (the Appellant) filed a Claim Form on 17 November 2022, while still employed by Amazon Web Services EMEA SARL UK Branch (the Respondent). His claims included direct disability discrimination, indirect disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment, victimisation, and whistleblowing detriment. He also claimed personal injury, including psychiatric injury, related to his severe hyperkinetic disorder (ADHD).
At a case management hearing on 4 April 2023, Employment Judge (EJ) Burns ordered Mr. Forrest to send the Respondent a completed list of issues, using a framework provided by the Respondent, by 2 May 2023. The judge noted that while his Particulars of Claim were "very articulate and sets out a clear factual background," it was difficult to discern the "precise allegations that the claimant wishes to pursue". Due to the Employment Tribunal's (ET) own administrative failure to issue the order, new deadlines were set on 26 May 2023, extending the deadline for the list of issues to 16 June 2023 and other disclosures to 7 July 2023. EJ Burns warned that non-compliance was "likely" to result in the claim being struck out.
On 7 July 2023, the Respondent applied to strike out Mr. Forrest's claims due to non-compliance. The hearing took place on 14 July 2023 before EJ Adkin. Mr. Forrest, acting as a litigant in person and having ADHD, required adjustments during the hearing, such as frequent breaks. EJ Adkin subsequently struck out all of Mr. Forrest's claims on the ground that he had failed to comply with Tribunal orders, specifically the order to provide a completed list of issues. EJ Adkin concluded that there had been a "persistent and deliberate delay" by Mr. Forrest, and decided against making an "unless order" (an order specifying that non-compliance by a certain date would lead to automatic dismissal), believing it would only cause "further expense and delay".
Held
The Employment Appeal Tribunal (EAT) presided over by Mr. Justice Griffiths, allowed Mr. Forrest's appeal. The EAT held that EJ Adkin made an error of law by striking out all the claims without first considering whether a fair trial remained possible. It was also deemed wrong not to make an "unless order" before proceeding to strike out.
The EAT emphasized that sanctions for breaches of orders are designed to secure compliance, not to be punitive. Citing the case of Baber v Royal Bank of Scotland plc, the EAT reiterated that the fundamental question when considering a strike-out is "whether the parties’ conduct has rendered a fair trial impossible". If a fair trial is still possible, the case should generally be permitted to proceed. The EAT found that EJ Adkin had failed to engage with this central consideration and had misinterpreted the legal test by viewing the possibility of a fair trial as merely an alternative basis for strike-out, rather than a crucial factor.
The EAT also noted that the finding of "persistent and deliberate delay" was weakened by the ET's own administrative error that necessitated an extension of the original deadline. Furthermore, the EAT observed that the quick progression from the Respondent's strike-out application to the actual strike-out decision (within seven days), especially given Mr. Forrest's status as a litigant in person and his disability, was "very rushed" and displayed a "lack of patience".
Crucially, the EAT found that an unless order would likely have secured compliance, as evidenced by Mr. Forrest providing a 24-page draft List of Issues after the strike-out. The EAT concluded that there was "no good reason not to" try an unless order, as it is usually best to "ratchet up pressure, rather than immediately giving up".
As a result, the EAT substituted its own decision: the Respondent was ordered to respond to Mr. Forrest's newly provided draft List of Issues within seven days of the judgment. A further case management hearing will then take place before the Employment Judge who is to hear Mr. Forrest's later claims, allowing for a more integrated and informed approach to case management.
Comment
This case strongly reaffirms the principle that striking out a claim for non-compliance with case management orders is a "draconian sanction" that should be reserved for circumstances where a fair trial is truly impossible, and generally only after less severe measures, such as an "unless order," have been attempted. The judgment underscores the importance of the overriding objective of dealing with cases "fairly and justly". It highlights that the purpose of sanctions for procedural breaches is to secure compliance, not to punish a party.
The EAT's reliance on Baber v Royal Bank of Scotland plc serves to clarify and solidify the judicial approach to strike-out applications, particularly when dealing with litigants in person or those with disabilities. The case emphasizes that tribunals must actively consider whether a fair trial remains possible, even in instances of deliberate non-compliance. The decision serves as a reminder that courts should generally "ratchet up pressure" through measures like unless orders before resorting to the ultimate sanction of strike-out, especially when there is evidence, even retrospective, that compliance could have been achieved. The context of the litigant being a disabled person and acting in person further underscored the need for patience and appropriate application of procedural rules.
